please remember the spin always stops here because we're looking out pr you. .

what happened when we showed up at the house of the va hospital administrator over the dental of dozens of veterans plus... why would anyone be fit to mock the injuries of a wounded navy s.e.a.l.? we'll investigate on a busy kelly file, right now. breaking tonight just hours after any a new committee is formed to investigate benghazi, fox news confirms a stunning e mail exchange that appears the obama administration does not want the american public to see. welcome to the kelly file, everyone, i'm megyn kelly. fox news learning details of an internal debate at the white house in the weeks after four americans were killed in benghazi, libya. the question of whether or not the administration knew this was

terror and not some spontaneous demonstration gone wrong from day one. our chief intelligence correspondent reports from washington. catherine? >> we're learning tonight that a seven-page e mail circulated at the highest levels of the white house to deal with a fox news report is being withheld by the state department citing executive branch deliberation the fox news report from september 27, 2012, concluded the intelligence community knew benghazi was terrorism within 24 hours. dennis mcdonough, john brennan, who now runs the cia and presidential advisor ben rose whose e mail yikts say link benghazi to the video to shape the public discussion. >> to me it demonstrates a

situation reacting to, trying to shape a response. >> these documents showed there may be other problems some e mails were retroactively classified and other e mails are more heavily redakted than the same e mails under judicial watch by order of a court. >> they're a bunch of documents i can't speak to every single one of them. i focused on thun this one because you're so focused on it >>panel will limit the ability to repond to the allegations >> thank you. >> my next guest argues president obama can do one long overdue thing, he says releasing the benghazi intelligence briefings. he makes that argment so why

hasn't he done it? mark, they, the democrats are saying that everything we need to know has been told. jay carney said the administration has been forth coming. you argue there is one thing they are not produced that your former boss, george w. bush did produce. >> look. president obama said that he was only repeating what the intelligence community told him when he said there was an internet protest that went awry and led the benghazi attack. if that is true, there is a simple way to prove it. release the daily intelligence briefing showing what the intelligence community told him. we'll learn whether they said there was an internet-inspired video, what they told him, all that have is in the briefings.

there is a precedent for it n 2004, at the request of the september 11th commission, the brief said bin laden preparing to tack the united states. people said we'd been warned about 9-11. that showed there was just vaj intelligence. if obama is right, if he was being told this is an an internet inspired video all he has to do is prove it. most of us have never seen a presidential daily brief. >> it does two things. first, it adds a level of

confidence, low, medium or high, and also include dissenting views we know the cia station chief dissented from the judgment there was a protest. we know. >> we just heard katherine harris report there is a seven page document, remember, this is all about a video. not a failure of policy. he, too, was there. i mean, so if he knew how would president obama not know? >> oh, he knew. so what happens is that he would have been told cia station chief dissented from that judgment. two, over a course of a few days from the day of the attack to when susan rice went out there would be a different level of confidence as intelligence started to question the judgment he might have started with a medium revel, then would have dropped down below. were they still going to americans and saying it was, if there was a judgment, was going

down? and dissents were being reported to the white house? it's a knowable fact what the president of the united states was told is he willing to come forward and tell us what the intelligence community told him? like george w. bush did. >> they've been saying this is nothing and all invented by republicans and said it again, today. this document would answer those questions one way or another as we have been reporting about the document that shows they knew it was terror within a day. and the same time, ben rods preparing susan rice to go on talk shows preparing her to tell everybody it's all about an internet video. we need something more. administration claims it told us everything. it was not. >> just that why is this important? because the president, we know since benghazi the president of the united states lied to us about obamacare. the top legislative priority in

the context of that, 51% of americans say the president lies most of the time or some of the time on important matters. in that context it's reasonable for americans to want to know did the president lie about benghazi, too? these document was prove it f he's got nothing to hide, nothing to fear. let him go. >> thank you. >> we mentioned this newly-formed select committee they want to push on benghazi. but before this committee can get to work, democrats have been suggesting today they will not be participating the white house is indicating it may not, either. our fox news judicial analyst. democrats are saying you may be counting us out. and george and others saying if they do that, that will make this partisan. can they be forced to participate? >> in my opinion, they cannot be forced to participate. as speaker boehner and the rest

of the house will probably have a forum to challenge the evidence the chairman and investigators dig up. they'll be waving the right and undermining their own credibility. >> what can a select committee do? it's not the same thing as a special prosecutor. >> correct. it cannot prosecute, charge, indict. but it has extraordinary subpoena power. it can find out where the president of the united states was during those eight crucial hours. >> we haven't been able to do that thus far. >> they can serve a subpoena, if it's not honored they can go to the united states district court and under a famous case, that you and i know, united states versus nixon they have a good chance of getting that subpoena answered before a judge. a judge will look at the

documents and decide which ones to turn over and which to send back to the white house. this white house has never done. that they've never been forced to do that. they're terrified of doing that. they don't want us to know whatever the truth is. >> can they subpoena president obama? >> yes. if this committee gets the broad subpoena power speaker boehner indicated they will get, by a majority vote, they can subpoena anyone as to whom they believe has information that they have the right to know about. >> you heard mark talking about the presidential daily brief. i assume that would not be among the documents they could gain access. >> the judge could say this part can come in. >> really?

you think we can get to a place the subpoena gets -- presidential daily brief that judge can say this piece needs to be released and that doesn't? >> absolutely. >> that is what happened. it was upheld by the supreme court of the united states. >> that would make headlines. >> yes. might get us to the truth. >> good to see you, juvenlth >> good to see you, megyn. >> the u.s. supreme court makes what could be a historic ruling on public prayer up next, what this means for all sorts of americans, neither side is backing down. and big news on the investigation into a va hospital, and details surrounding the deaths of dozens of veterans. see why this administration is on defense. plus, watch what happens when the kelly file went to the woman who now finds herself under the microscope in this case.

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i'm saving a ton of time by posting them to my wall. oh, i like that one. it's so quick! it's just like my car insurance. i saved 15% in just 15 minutes. i saved more than that in half the time. i unfriend you. that's not how it works. that's not how any of this works. [ male announcer ] 15 minutes for auote isn't how it works anymore. with esurance, 7 1/2 minutes could save you on car insurance. welcome to the modern world. esurance. backed by allstate. click or call. shall we pray. almighty and everlasting god, father, son, and holy spirit, it is with a due sense of reverence and awe that we seek your blessing upon this gathering.

>> that prayer at a small town meeting in new york helped spark a legal fight that went all the way to the supreme court where today we got an important ruling that could change the shape of public prayer. the court sided with the town of greece. deciding it is okay for these prayers to continue. that's a decision that could touch a lot more than the meetings many greece, new york. tonight in a "kelly file" exclusive, both sides are here. barry lynn, aek executive director of citizens for separation of church and state. thank you for being here. barry, as the person who did not prevail today, let me ask you if you think this case as implications of the decent warned in objecting to the opinion. >> i certainly think this is a

very bad decision and a bad decision because five members of the court seem to be running count tore the entire culture of the united states. where we try to be all over the united states more sensitive to diversity of religion, diversity of belief. we try to be thoughtful when we construct any process that's related to government to be inclusive as possible. >> when you talk about the culture of the united states, the supreme court back in 1983 had recognized that public prayer has long been and has clearly become a part of the fabric of our society. that was a key point that was ewed against you today. >> it was, but 200 years ago they cite a lot of things that happen, prayers that were given, and the principles of history are important. but every precise practice is n not. a couple weeks ago the united states supreme court started to talk about the first amendment rights that could affect cloud computing. 200 years ago the only clouds we heard about were rain clouds.

now we know using common sense and rationality that things have changed. this country -- >> public prayer hasn't really changed. hold on. i want to get your competitor in here. >> there's a big difference between applying first amendment principles to new free speech technologies and saying something that was okay when the framers did it is now not okay. this is a good day that the supreme court upheld this time-honored practice of citizens praying at government meetings just as the authors of the constitution did. i think it's a wonderful decision. >> let me change you because the other side says for nine years all you had were christian people standing up before the town and that made others feel excluded and like government was telling me, only christians get to speak here. >> that's true. what the flexibility of the government people showed there

in greece was to expand it. they went with a list of local houses of worship. they expanded it it when this was pointed o out to them. there was no way they were trying to convert people to christianity. and plus there's a lot of difference between a catholic priest and a pentecost l preacher and to dump them all into one pot and say they are all christian just glosses over centuries of theological diversity. >> they even had a priest that got up and prayed to apollo. >> there were three people who suspiciously at the time we threatened to sue them all of a sudden they found a leader and although they couldn't find arab buy. they found a jewish person who could give a jewish prayer. if this town can't locate a single rabbi, a single emom, i

would say i'm worried about how they are fixing the potholes because it doesn't sound that they are serious. because if you can't do something as simple as findsing the people -- >> they could but no one wanted to speak. the point is did they invite them and they say they did. >> they did not invite them. the only invitations came when we threatened to sue them. >> let me ask you this. you say this case -- let me get jordan in on this. this has implications for every level of government across the country. how so? >> i think that it does. it's a practice that was done at local units of government and state legislatures, at congress and i think it's going to help many people see that the establishment clause is not sort of command by the constitution for the government to go on search and destroy missions.

>> let me ask you this. we cover so many cases as practical matter. how big a win do you view this for those who believe that public prayer is still okay? >> i think this is really big. we're kbeting the same kind of arguments in new york city to exclude churches and other religious groups from meeting in the public schools. you have to treat religious groups worse than everybody else. this brings balance back. >> guys, thank you both for being here. i have to run. barry's side was represented. thank you. >> thank you. speaking of free speech, we will hear the story of how students at one college campus were told there was one thing they could not mention in their graduation speeches. plus in a few minutes see why the obama administration was rushing to defend against the latest twist in the probe into a v.a. hospital and the death of dozens of veterans. if you have a terminal

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if you have a terminal illness, should you have the right to try treatments that might save your life but are not yet officially approved by the fed's? that debate is now playing out across this country as lawmakers get behind the right to try act. we have the details from los angeles. >> reporter: imagine a disease

that takes 15,000 victims a year, yet just 20 patients are selected for a clinical trial u. a year later the drug shows dramatic results, but fda approval remains years away. should others have the right to try the drug? you decide. >> people die from not being able to access these drugs. i don't want to be one of them. >> reporter: but she was. after fighting the fda, mckayla died two weeks ago. >> the amount of effort you have to put into doing this is just far too much at this time in our life when you really just want to be able to slow things down and just enjoy being together. >> reporter: he lobbied members of congress and the media to save his wife but ran out of time. >> this is one area in which policy does not match what the american people would want. >> reporter: around the country terminally ill patients want access to experimental drugs not yet fully approved by the fda.

>> my brother has been on this drug for two years. >> reporter: max got into a clinical trial and is getting better. austin did not and continues to get worse. >> my brother can run and walk and i can only sit in my chair and watch him. >> we know with 100% certainty he will die. >> reporter: just 3% of patients get selected for a clinical trial. those who miss the cutoff are out of luck for the next seven years. >> every day thousands of americans are dying when there are potentially life u-saving drugs that they could be taking. >> reporter: this missouri lawmaker is losing his daughter. they sponsored right to try bills, which allow terminal patients to deal directly with manufacturers for drugs still undergoing trial. >> all this bill is is to allow investigational medications to

be available. >> reporter: not everyone is on board. statistically only 10% of drugs under fda study ever make it to market. >> you don't know this is any better than nothing. you don't know that this won't reduce your life expectancy rather than increase your life expectancy. >> reporter: unproven drugs offer a false hope and companies shouldn't sell medications until they are proven safe and e effective. but the terminally ill say some hope is better than none at all. up next, a new whistleblower in the investigation into a v.a. hospital and the deaths o of roughly 40 veterans. the evidence continues to mount. plus what happened when we found the woman at the center of this controversy. >> this is fox news, "the kelly file," can we please speak with you? >> why would anyone see fit to mock the injuries of a wounded navy seal?

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breaking tonight, one of the largest veterans groups is calling on president obama to fire the secretary. it's time for v.a. secretary to go. for what they are calling incompetence. as the head of a department that's reached a point of crisis nationwide. it's the first time in decades they have done such a thing. the most recent allegations of kbros misconduct come from the phoenix medical v.a. where whistleblowers are coming forward saying executives in phoenix left veterans at risk and may have contributed to dozens of deaths.

we have the latest. >> the latest whistleblower tonight telling "the kelly file" there was a secret list and that management even showed e employees how to use that list. the iraq veteran says he was let go to treat his ptsd. when vets came into an appointment he would print the information that they needed to see their doctor and place it in a separate folder. those names didn't make it on to the electronic list that showed vets were being treated. instead those in the secret list often waited months, sometimes more than a year. he concurs with the original whistleblower and says this to anyone who denies there is that list. listen. >> absolutely. they are flat out lying. that's why dr. foot came out. that's why i'm here to support dr. foot because i know firsthand. i have seen it, i used it. we did it every day. they are absolutely lying.

>> pedro went into the v.a. hospital with breathing problems. he got an appointment 13 months later but died of respiratory failure during the wait. listen now to his daughter. >> god has the final word on when it's time for somebody to go, but i i'm saying what gives this hospital the right to make my dad suffer the way he did for a whole year. my dad was a really strong man. very brave man. >> the phoenix v.a. hospital director has been placed on administrative leave. she denies there was a secret list and has now stopped answering questions so today we paid her a visit. watch. >> this is fox news, "the kelly file," can we please speak with you? >> she did not answer the door. we also went to the door of the

associate director. again, there was no answer there either. congress ordered the v.a. to maintain their records, but that order was delayed for eight days unclear exactly what was maintained. >> this is unbelievable. thank you. my next guest is another phoenix v.a. doctor adding her name to the list of those stunning misconduct at her hospital. she says she rescued some evidence that will help prove it. dr. katherine mitchell has worked there 16 years and is now medical director of a transitional program. thank you for being here. this is stunning. you heard that witness that we tracked down in phoenix saying there was a secret list. the veterans were being placed on it because they wanted to show the wait times were shorter than they were. in fact, if veterans were waiting five and six months to get seen and the secret list helped the v.a. keep a record of who they were. the official list showed the

wait list was only two weeks. do you confirm that was happening? >> well, i knew that there was a delay between the time the patient requested an appointment and the time they were put on the electronic waiting list. even when i first transfer ared over to the clinic where i work in now, we went. back through to see if we could schedule some patients with me and we found some waiting as long as a year to get in for an appointment. >> now you have dr. foot and others coming forward to say, i'm telling you, it's because there was a secret list. that basically that the employees were told to keep the veterans off the official list until they could get on within two weeks. now the evidence has come out that we can't find the secret list. the testimonials have been that we were ordered to destroy it. you say, not so fast, because there's additional evidence that the secret list existed. tell us. >> correct.

the computer every time a veteran requests a new patient appointment the computer generated a fingerprint or a record of that. what the health administration service didn't realize is that you could print a list of every patient that's requested a new patient appointment. when they found that out the week of april 24th, then there was a move made by administration to bring in eligibility staff to essentially go into the computer and electronically e erase that list. >> this is incredible. so they were told to preserve documents, which they didn't. that would have happened after they knew that they were being ordered to preserve documents that there was an inspector general looking into the matter, correct? >> correct. in the history that i have been there in general, the staff have warnings of an inspector general investigation. so things are usually covered up. it wouldn't be unusual.

>> it it might not be unusual, but it's unethical. so someone is ordering them to destroy the secret list and once they begin the investigation to go in and destroy this additional record that would prove that there was a secret list. do you know who gave that order? >> yes, i do, but that's part of the o.i.g. investigation. >> can you tell me whether that person has been placed on leave yet? >> possibly. >> can you tell me whether it was sharon heldman? >> to my knowledge, she was not involved. i have no knowledge one way or the other. the information i have comes directly from the eligibility staff that we're working with the list and the health care administrators that force them into mandatory overtime. >> what were these fellow employees saying to you when

they had been given the order destroy the evidence? >> when they were brought in on that saturday, they weren't told they were destroying evidence. they were just making appoi appointments with a new set of computer keys. essentially they were told they were working off a different list, but it was nothing out of the ordinary. the goal was to facilitate new appointments pr veterans who were waiting pr some time. the employees who asked for my assistance weren't aware of what was going on. the employee who asked for my help found out fairly quickly and found a way to keep that from happening. >> that's all that matters. the inspector general has the record and we expect o get to the bottom of this and we expect that record to outline all of this in great detail so we can all know the truth. haung for helping them and for coming on. all the best to you, doctor.

>> thank you. you need a few brave souls like that doctor who are coming forward to be honest about this. now the congressman who helped spark the investigation, how needed was that, join mess now. jeff miller is the chairman of the house veterans affairs committee. this is an outrage, sir. >> most definitely. >> what's going to be done about it? who should get fired? >> right now we need to wait for the inspector general to have their report made public, hopefully in the next 30 to 45 days. but i right now believe the whistle blows. i do not believe what the v.a. is saying. the evidence that we have got sboon our committee and passed on to the inspector general fully corroborates the whistleblowers' ideas that they put forward and i think that some of the calls for resignations are probably going to get stronger over the next few days. >> the american legion wants the secretary to step down.

do you join them in that call? >> i don't right i think we neee sure that the inspector general looks at all the information that we provided and what they are able to get. but if in fact what we suspect is true, i think the secretary will have no other option but to step down. right now, we know for a fact there have been 23 preventable deaths within the united states and we suspect there's more. we know that there's been manipulation of numbers, both at phoenix and at fort collins, colorado. we do not trust the numbers that v.a. gives us in any way, shape or form. >> it boggles the mind that this could be going on. is this now well beyond as the former secretary of veterans affairs told me on this program, is this well beyond an ethical investigation and crossed into a criminal investigation into your view? >> i believe it has.

and the unfortunate thing the department of veterans affairs it's easier to get a promotion than it is to get some type of disciplinary u action. fort collins, colorado, where there was manipulation of the numbers again and all v.a. said, there was just a little misunderstanding and we'll have some retraining. we have veterans that have died waiting for care in this country in both georgia and south carolina. nine states had preventable deaths. . they need to start telling the truth about what's going on. >> you wrote the president himself a letter and demanded accountability. the president back in 2009, because let's face it, the problems at the v.a. is not new. but the presidential back in 2009 promised things would be very different. here's a bit of that. standby. >> we're going to challenge each of our 57 regional v.a. offices to come up with the best ways of doing business, of harassing the

best technologies, of cutting red tape and breaking through the bureaucracy and then we're going to fund the best ideas and put them into action. all with a simple mission, cut those backlogs, slash those wait times, deliver your benefits sooner. i know you have heard this for years, but the leadership and resources we are providing this time means that we're going to be able to do it. that's our mission and we're going to make it happen. >> this time it's different, he said. i know you have written him asking for his direct involvement. what more could the president do? >> i asked the president a year ago. actually it was may of last year that i wrote him a letter and asked him to get involved personally. what we have seen is a scandal brewing within the department. i have yet to receive an answer. i don't get anything out of the department of veterans affairs. i ask every friday afternoon for

an update. we have over 90 requests in, some dating back two years. and i don't see any transparency. the president will say anything to get elected, get reelected and to stay elected. >> this is so distressing when you see one after the other, these whistleblowers coming forward and go on record of what was happening there. congressman, thank you so much for being here. >> thank you. >> that's incredible. give us your thoughts. if you have any information to share, do that as well. go to our facebook page and let us know your views on the matter. up next, an exclusive, a student at one american university are told to leave one thing out of their graduation. can you guess what it is? that's next. plus an update on a marine locked up in mexico after apparently taking a wrong turn that led him straight to a

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soulmate is crazy. find your sleep number setting only at one of our 425 stores nationwide. you can afford a sleep number bed, you can't afford another mediocre night's sleep. know better sleep with sleep number. a kelly file exclusive after a group of graduating students are reportedly told to leave god of their graduation speeches.

their own speeches. a may 1st e-mail from an assistant professor reads "i have had some submissions that needed to be edited so here are some guidelines. one, you can't thank god. i'm sorry about this and i don't want to have to outline the reasons why." the man who broke the story is with us. the reason why is because he was controverting the constitution. >> exactly. the professor instituted a don't ask don't tell policy when it comes to religion in the classroom. students came to campusreform.org really upset that the professor was not allowing them to acknowledge and thank people and a god, for instance, during this time of celebration. >> when it crosses over, the supreme court decision about ten years ago, that talks about how when it can cross over into

university sanctioned speech, it if it's the university saying god, you could be in the trouble zone. but when it's a student on his own without any prompting by the school, that's a different story. we have had precedent on that as well. >> exactly. it was the students that wanted to initiate this. it goes to a deeper issue. the issue that the professors don't understand what the students were trying to do. we hear about this all the time at campusreform.org. he were not looking at this as an opportunity to broadcast to an audience. they wanted to deflect the attention from themselves on to a higher power. they wanted to thank god and the professor wanted to instead force his own agenda on to the students and not allow them to do so. >> what was he a professor of? >> chemistry. >> naturally. that makes him qualified. he follows on twitter the likes

of bill mahr. he said it's a document l thing. we have a diverse student body. it's purely educational. the university did not stand behind the professor, did they? >> no, they did not. they denounced his claims. >> they only did that because the law was not on his side. caleb, thanks for bringing the story to us. thanks for bringing the story to us. >> thank you, megyn. coming up, a "the kelly file" investigation, why would anyone harass a navy s.e.a.l. vet? we'll take this on next. are your joints ready for action? osteo bi-flex® nurtures and helps defend your joints with joint shield™♪ so you can keep doing what you love. what'd you guys do today?

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"the kelly file" investigation now, after surveillance camera video captures a navy s.e.a.l. veteran being berated by his neighbors on his own porch while he tries to put away the stars and stripes. trace gallagher live with more. trace? >> david hall, megyn, was a navy s.e.a.l. for 21 years. he tried to avoid a grenade, jumped off a roof and busted his knee so badly he almost lost his leg. now he's fighting a different battle with his neighbor. he admits he and the neighbor have been at odds since a dispute about the home owners' association a few years ago, but now he says the verbal abuse has been relentless. the latest tirade was captured on his home surveillance system. he was taking down his flag at sunset. you'll see david and hear the neighbor. listen. >> laying around and do nothing.

david hall then posted the video on youtube and has since been taken down. hall says he believes his neighbor had been drinking at the time, but he was still stunned to hear what he said. listen. >> it really offended me, and i feel like a strong advocate for veterans. i thought, if he has the guts to do that to me, then there's other people in other places in the country that are experiencing the same thing and may be worse. i thought i'd just illuminate it. >> we should note the neighbor posted his own response on youtube saying it was david hall who was the actual bully in this whole thing. the halls have now decided to put their home up for sale and to leave the neighborhood. megyn? >> trace, thank you. let us know what you think, send me a tweet or go to facebook.com/thekellyfile. coming up on "hannity" at the top of the hour. >> some big mistakes were made under hillary clinton's watch. the first mistake was i think in the middle of a civil war, they

should have never had this embassy or con

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welcome to the modern world. esurance. backed by allstate. click or call. ♪ ♪ earlier tonight, judge napolitano mentioned what a special prosecutor might mean for the benghazi investigation and some are suggesting "kelly file" favorite andy mccarthy for the job. the former prosecutor joins us tomorrow night on that.

don't forget to set your dvrs. get a season pass of us. every night at 9:00 p.m. eastern time, 6:00 p.m. pacific. thank you for watching. see you tomorrow at 9:00 with andy. here's "hannity." this is a fox news alert. house speaker john boehner has chosen south carolina congressman trey gowdy to head the benghazi select committee. thank you for joining us on a very, very busy night on "hannity." i'm eric bowen in tonight for sean. >> short time ago, fox news learning three leading republicans will circulate a letter as early as tomorrow calling for harry reid to form a joint benghazi select committee with the house. today, the speaker publicly confirming what had been said privately, that south carolina congressman trey gowdy will lead the select committee, vetting his experience